OSHRC Docket No. 624

Occupational Safety and Health Review Commission

April 24, 1975


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



VAN NAMEE, COMMISSIONER: In this matter Respondent was cited for an alleged non-serious violation of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq. ) because contrary to the requirements of 29 C.F.R. 1910.265(d)(2)(iii)(g) its boom men (employees whose duties involve working and walking boomsticks and walkways on log ponds) were not wearing life jackets. Respondent defended principally on the ground it had done everything reasonable to obtain compliance by its employees. But, said Respondent, its employees would strike if Respondent enforced the wearing of life jackets by organized employees. It pointed to its own prior history and showed that a 4-5 day work stoppage occurred in 1966 when it tried to make its employees wear life jackets. Respondent asked that a cease and desist order issue to Local 3-107, International Woodworkers of America, AFL-CIO.

In deciding the matter, the administrative law judge determined that we do not have statutory authority to issue a cease and desist order. He affirmed the citation specifically because he found that although Respondent had done [*2] everything reasonably possible to get its employees to want to wear life jackets it did next to nothing to force them to wear the jackets. No penalty was assessed primarily in view of Respondent's good faith.

On review, we find from the record that Respondent's employees are presently wearing the life jackets. Accordingly, we do not in this case decide the question whether we have the authority to issue a cease and desist order. n1 Respondent also argues that the cited standard is vague because by its terms it requires the wearing of "appropriate buoyancy devices." n2 The argument is frivolous on the record. Respondent has not experienced any difficulty in determining what is required by the standard. Georgia-Pacific Corp., 4 OSAHRC 509, BNA 1 OSHC 1282, CCH E.S.H.G. para. 16,458 (Rev. Com'n., 1973).

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n1 See our decision in Atlantic & Gulf Stevedores, Dkt. 2818 (April 1975) and companion cases for the individual views of Commissioners Van Namee and Cleary on this issue.

n2 See our decision in Santa Fe Trail Transportation Co., 5 OSAHRC 840, BNA 1 OSHC 1457, CCH E.S.H.G. para. 17,029 (1973) for the individual views of each Commissioner concerning our authority to declare a standard unenforceable for being vague.


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As to the question of the existence of a violation, the judge's finding that Respondent had done next to nothing to enforce the wearing of life jackets is (1) supported by the record, (2) distinguishes this matter from Brennan v. OSAHRC & Raymond Hendrix d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir., 1975), and (3) is therefore sufficient to support his conclusion that a violation was established. Similarly, no penalty is appropriate.

Accordingly, the report of the administrative law judge is adopted to the extent it is consistent herewith as the decision of the Commission. It is so ORDERED.



MORAN, CHAIRMAN, dissenting: This is another case where an employer is found in violation of a Federal law because his employees refuse to observe a regulation ostensibly promulgated for the benefit of those self-same employees. The logic of punishing an employer for employee recalcitrance escapes me. So does the legality of such a holding. Once again I ask: What did this employer fail to do in order to meet the requirements of the law? The record clearly shows that respondent did [*4] everything feasible to get its employees to wear life jackets.

The majority opinion is internally inconsistent. On the one hand it notes that respondent had endured a work stoppage at this worksite because it required the wearing of life jackets. On the other hand it concludes that respondent "did nothing to force its employees" to wear the life jackets.

I find that conclusion incomprehensible. The record reveals a twenty year struggle over the issue of the wearing of life jackets between the respondent and its employee boom men, who were backed by their union in their steadfast opposition to life jackets. For two decades respondent has conducted a faithful program to educate its employees in the benefits of the wearing of life jackets. Respondent's supervisory personnel have cajoled and begged employees individually to wear the jackets. Respondent not only has had an abundance of life jackets available for employee use; it has gone to the expense of trying six different types of jackets in the hope of finding one acceptable to the boom men. It has kept signs posted demanding the wearing of life jackets. It requires all management employees and all nonunion [*5] employees to wear the jackets as a condition of employment. Regrettably, it cannot find a way to enforce this requirement upon its unionized employees.

Although the majority opinion doesn't say how this employer is going to change this condition it goes without saying that the Commission is telling the employer to get rid of its unionized employees if they continue to refuse to wear the life jackets. I reject such a solution. This Commission has no authority whatsoever to interfere in union-management relations. Our only jurisdiction is to determine issues in dispute between parties properly before us. In this case the issue is: Did this employ er violate the Act as charged? The answer to that question is in the negative. The employer carried out its obligations. The only thing preventing accomplishment of the Secretary of Labor's objective of having all employees wear life jackets is the employees themselves. This respondent is helpless in the face of united opposition of the boom men, acting through their union, to force union members to wear the jackets. Though the respondent negotiated with the union an agreement (in effect at the time of the inspection) that the [*6] union would use "its facilities for educating its membership so that they will . . . use provided personal protective equipment," the union has not encouraged its members to wear the life jackets, and instead has always threatened that its members would strike if any member were disciplined for refusal to wear such a device.

The majority dismisses the issue of whether the Commission should issue a cease and desist order because the record shows "that Respondent's employees are presently wearing the life jackets." What it fails to note is that the union members' decision to comply was conditioned on their decision to demand a dollar an hour pay raise for agreeing to wear the jackets. At the final hearing boom men testified that if they fail to negotiate the pay raise, they will strike. The war is not won; another battle is about to be fought.

The court in the Alsea Lumber Co. case, supra, recognized the dual responsibility under the Act for both employers and employees to comply with occupational safety and health standards. n3 In that case the omission to observe a job safety requirement was solely attributable to an employee's neglect. The court, consequently, [*7] released the employer from the charges. That is the situation here -- only more so. It is employee recalcitrance, not employee neglect which frustrates the observance of safety requirements at this workplace.

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n3 See 29 U.S.C. 654(a)(2) and 654(b).

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Alsea held that an employer can be expected to fulfill a duty only if that duty is "achievable." The requirement of compliance imposed by the majority is not achievable -- unless the majority thinks it reasonable for the respondent to achieve compliance by allowing its plant to be closed down by striking employees -- or by replacing union employees with nonunion workers. A solution of that kind is no way to obtain safety, unless one is to take the position that the sure way to ensure job safety is to shut down all jobs.

Congress did not enact the Occupational Safety and Health Act to create guarantors upon whom to fasten responsibility for illnesses or injuries or deaths to employees. Their purpose was remedial. The Act is a broad scale effort to prevent [*8] "personal injuries and illnesses arising out of work situations." The first-stated purpose of the Act is to encourage and stimulate "programs for providing safe and healthful working conditions.

To hold an employer absolutely and strictly responsible for all deaths and injuries to his employees is contrary to that purpose, to the very reason for having occupational safety and health standards, and to the Act itself. Secretary v. The Mountain States Telephone and Telegraph Co., 2 OSAHRC 168, 169-70 (1973).

The action of the majority in this case encourages and stimulates nothing positive. It only discourages employers from good faith compliance and stimulates frustration, hopelessness, and hostility to the Act and its administrators. And it adds fuel to a smoldering labor-management dispute. To my mind, that is a questionable accomplishment.

[The Judge's decision referred to herein follows]

WATKINS, JUDGE: In this protracted litigation, including a reopening of the record for additional testimony, the Secretary seeks a finding that on January 21, 1972 Respondent Weyerhaeuser Company was in violation of Section 5(a)(2) of the Occupational Safety and Health Act [*9] of 1970, 29 U.S.C. 651 et seq. by not requiring its log boom men to wear "appropriate buoyant devices" it had furnished them at its Longview, Washington wood products complex; as mandated by a special industries -- sawmill, standard adopted pursuant to the Act. A civil penalty of $70 is proposed for the alleged violation.

Respondent contends it is not in violation of the Act for several reasons. First, although it had an 18 year standing rule that all boom men wear life jackets, it could not obtain compliance by a majority of the employees because of individual opposition to the practice, and concerted resistance by the boom mens' local union. Local 3-107 is affiliated with International Woodworkers of America but operates quite independently. It is one of two boom men locals in the State of Washington having independent contracts with Weyerhaeuser.

Secondly, Weyerhaeuser alleges in its amended Answer that the union is demanding $1.00 an hour more for each of its men for wearing life jackets, that the Citation should not have been issued and that its enforcement would constitute an interference in labor management relations. This is also given as a reason in three other [*10] defenses alleged, for Respondent requesting an order granting it an examption from the standard at its Longview log pond, for not requiring immediate abatement and for not assessing a penalty.

Finally, Respondent states the Act and the standard adopted under it do not contemplate strict liability on the part of the employer; but that if such is imposed and the Citation affirmed, a further order be entered finding Local 3-107 of the International Woodworkers of America likewise in violation and ordering compliance on the part of its members.

Following is the language of the applicable par of the Citation, the portion of the Complaint specifically alleging the violation, and the standard in question.



Citation Number: 1 (Page 1 of 2 pages); Date Issued: February 16, 1972;

EMPLOYER: Weyerhaeuser Company,

Street: End of Washington Way;

ADDRESS: City: P.O. Box 188 Longview State: Washington Zip: 98632;

An inspection of a workplace under your ownership, operation, or control located at Longview, Washington and described as follows:

Div., Sawmill & Planer facilities

has been conducted. On the basis of the inspection it is alleged that you have violated [*11] the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

5 -- 1910.265(d)(2)(iii)(g) -- Employees whose duties involved working & walking on boom sticks and walkways along water of log pond were not wearing appropriate buoyant devices while performing such duties. -- Immediately




On January 21, 1972, at the place of business and employment referred to above and more particularly described as the log pond at the Raw Materials Division, the respondent violated the safety and health regulations in the following respect:

Employees whose duties involved working and walking on boom sticks and walkways along water of log pond were not wearing appropriate buoyant devices while performing such duties, contrary to 29 CFR 1910.265(d)(2)(iii)(g).

STANDARD: -- 29 CFR 1910.265(d)(2)(iii)(g)

Employees whose duties require them to work from boats, floating logs, boom sticks, or walkways along or on water shall be provided with and shall wear appropriate buoyant [*12] devices while performing such duties.

Applicable procedural requirements were met with respect to notice to additional parties. Mr. James B. McCoy, attorney for the authorized employee representative appeared and participated throughout the hearing.

The hearing was in Longview, Washington June 23, 1972, and appeared to be completed at the end of one day. About the middle of September and after all briefs had been submitted, the trial judge felt reservations about whether the record was deficient and should be opened for evidence on two points. The first was whether the local union took specific action at any time or times regarding the wearing of life jackets by its members and, if action was taken, what it was. Secondly, whether the record was likewise deficient about the particular officers or other supervisory people of Respondent who made decisions to allow many of the boom men to work without life jackets in violation of company rules.

Accordingly, a telephone conference was arranged for September 25, 1972 with Mr. William W. Kates, attorney for the Secretary, Mr. Douglas B. M. Ehlke, attorney for Respondent, and Mr. McCoy. Being informed that union officers who might provide [*13] some of the evidence suggested had been under subpoena and present at the hearing, the trial judge abandoned the idea of reopening the case on his own motion. Counsel for the Respondent asked for leave to submit a motion to reopen.

This motion was made and was heard on October 2, 1972. The proceedings are a part of the transcript. Included therein are restatements of the substance of the telephone conference. The motion was granted, on terms of $350.00 to be paid the Union by Respondent for additional expenses. The hearing was concluded in Longview, Washington on November 2, 1972.

Disposition should be made first of all Respondent's contentions other than that it was not in violation of the Act and that no penalty should be assessed. This Commission was created by statute. Its powers flow expressly or impliedly from the provisions of the Occupational Safety and Health Act of 1970, supra.

The Secretary of Labor has primary responsibility for enforcement of the Act. The jurisdiction of the Commission is limited to review, and either implementation or vacation of allegations by the Secretary of violations of the Act; along with assessment of penalties, or vaction [*14] of proposed penalties in connection with alleged violations. All orders in this type of case under the Act are final orders of the Commission; whether entered by it, or "deemed" such under Section 10(a).

It is true that Section 10(c) provides "The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief. . . ."

"Other appropriate relief" can go no farther than the Commission's authority under the Act. It cannot grant Respondent an exemption from the Act.

Section 5(b) imposes an express duty on employees, providing: "Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct."

There is then provided no means of enforcing compliance by the employee. The Commission could issue a "finding" that an employee, or employees -- did not "comply." Such action would be fruitless, however, because there is not statutory provision for entering an order based on the finding.

The case therefore resolves itself into the question [*15] as to whether Weyerhaeuser on January 21, 1972 was in violation of the "buoyant device" standard for boom men, and if so, what is an appropriate penalty for the violation.

The position of the Secretary is simple. The employer's obligation is not only to "provide" the buoyant devices but also to "wear" them -- meaning of course that the employer must see to it that his employees wear them.

Weyerhaeuser's position is that it was impossible to comply with the standard, considering the facts as they existed at the time at Longview. Examination of these facts is therefore necessary.

One witness testified the Weyerhaeuser complex in Longview may be the largest of its kind in the world. The evidence did not disclose what kind, except there are at least two log sawmille and the boom area here involved. At the time of the Citation there were 74 boom men, four foremen and a superintendent of the boom area.

Two boom men have drowned at Longview, one in September of 1954 and the second in June of 1955. The testimony is that after the first accident an order was issued that all boom men would thereafter wear life preservers. The order was made known to all affected employees. [*16]

One morning all the boom men refused to put on jackets before going to their assigned places of work and the company supervisory personnel refused to let them go there without jackets. The impasse lasted about two hours before "the company receded."

Since then two men have either quit or have been fired because they would not wear life jackets. Workmen have agreed -- and have worn life jackets -- for some jobs but not for others. The subject has been discussed at quite a number of meetings of a committee not formally designated a "grievance committee," but formed for discussion of job problems by designated union and management personnel. Respondent's Exhibit 8, portions of committee minutes where life jackets were discussed, shows a considerable deviation over the years from Respondent's position that the rule has at all times been mandatory and a "condition of employment."

Labor contracts have uniformly provided for life jackets. (Resp. Ex. 10 and 13. Testimony is that all interim agreements had the same provisions.) Article VII A(2) of both agreements -- 1953-4 and 1969-72 provide "the Union assumes the responsibility for using its organization's facilities to the greatest [*17] extent possible through the education of its officers and membership in reducing mechanical hazards, usafe practices, and accidents that arise from these sources. The Union also agrees to use its facilities for educating its membership so that they will work safely, use provided personal protective equipment, and take no unsafe chances with their own persons, as well as those of their fellow workmen." (Emphasis added)

The only other items of "personal protective equipment" used by boom men are caulk shoes and cramp-ons about which there has never been any dispute. Thus the contract rather clearly requires the union to use its best efforts to get its members to wear life jackets provided for them.

Since 1954 the company has provided the boom men at Longview with six different types of life jackets. One was either custom made or ordered especially, and is known in the industry as the "Weyerhaeuser jacket" -- but is not worn at "Weyerhaeuser Longview." The men were not only issued jackets individually, but there were enough available for any man to use one any time he wanted it.

Supervisory personnel, including the superintendent, boom supervisor and foreman, were [*18] life jackets at all times required. Student summer employees did likewise. Visitors to the boom were required to wear them, as were employees in other crafts such as electricians, carpenters and the like. Estimates of different witnesses vary somewhat as to the total number of boom employees wearing life jackets. A preponderance of the evidence would be that during the time from 1954 until the Citation was issued in January of 1972, approximately 10% of the men wore them, including supervisory personnel. Weyerhaeuser has admitted this from the outset.

The State of Washington adopted a buoyant device standard on July 10, 1967. Its wording about buoyant devices being provided and worn is identical to the OSHA standard. There was a considerable amount of talk about this standard both before and after it was adopted. It is clear a good many of the misconceptions on the part of people involved, both management and labor, can be traced to the fact that the standard was not enforced. Some of the boom men, for example, believed they had "an oral variance" from the standard. Others believed it -- and the OSHA standard when adopted -- applied only when men were not working in groups [*19] of at least two. Others believed the requirement for life jackets applied only to certain types of jobs performed by the boom men.

Throughout the entire period the boom ground was adequately posted as a "life jacket area." The signs shown in Respondent's Exhibit 2, A through Y, state that failure to wear life jackets in the area is a violation of Company policy and of OSHA regulations. These were put up after the Citation. Additional evidence shows, however, that there was adequate posting of the area during at least most of the 18-year period covered in the testimony.

South Bay is another boom ground of Weyerhaeuser. It is on Puget Sound about 75 miles from Longview and supplies the Everett, Washington mills. The boom men are represented by another local of IWA which is as nearly autonomous as the one in Longview. Its members are also covered by a separate contract.

In 1966 the Company made an attempt to force the wearing of life jackets by all boom men at South Bay. The men refused and there was a work stoppage for four or five days. At the end of this time, the company capitulated and the men went back to work without life jackets.

After the Citation was issued [*20] in this case the Longview union local held a meeting at 3:00 P.M. on February 29, 1972. The shift changed at 4:30 and the swing shift men were on the job at that time. In the intervening hour and one-half supervisory personnel had performed sufficient work to keep the operation going.

The minutes of the meeting state (Resp. Ex. 12): "Mac McFarling made a motion we negotiate for $1.00 an hour wage increase if we have to wear Life Jackets due to safety hazards and change of job content." The supervisor of the boom area testified that following the meeting the boom men wore fewer life jackets than before.

Respondent characterizes this as an unauthorized and illegal work stoppage and the use of the Occupational Safety and Health Act of 1970 as a club to force an increase in wages. The union counters that it has never taken a position against the wearing of life jackets. Its demand for increased pay is based upon a change in the job content of the boom man's work, it being more difficult for him to do his work wearing a life jacket -- it requires more "sweat."

There is no direct evidence of any action by the total membership of the union to inhibit the practice of wearing [*21] life jackets. There is evidence of individual resistance to wearing buoyant devices for a variety of reasons. There is also clear evidence of continued activity on the part of union members acting for their organization in committee meetings over a period of 18 years; when at various times they resisted the use of life jackets, agreed to use them on certain parts of the job and not on others, and under certain conditions and not others. An example of the attitude of the committee representatives of Local 3-107 is a statement of Mr. Kenneth King on April 16, 1956, when he said, "Are you trying to tell me that wearing a life jacket will keep men from drowning?" (Resp. Ex. 8)

It is also true that after the Citation in the instant case the union tried harder to get a pay raise for wearing life jackets. It was not a new idea. In the minutes of the same committee meeting in 1956, Mr. King is quoted as saying, "It appears to us that we should perhaps be talking about the possibility of wage adjustments for the men because their work is harder for them when they have to wear life jackets."

The time the men took off to vote on February 29th was not "illegal" or an "unauthorized work [*22] stoppage." It was authorized by company representatives at a committee meeting with Union members on February 25, 1972. The minutes state, after showing a request by the union that the meeting be allowed, "The Company stated that it understands this is a problem to get the crews together but we can't shut the mills down."

"The Union replied that if it could hold the meeting at 3:00 p.m., it feels the night shift would be back to work probably by the start of the night shift.

"The Company stated that on this basis, it will attempt to get other people to man these jobs while the meeting is taking place. The Company further stated it is sure the Union is aware that stop work meetings are not in the contract.


"The Company stated that it would go along with this request. The Company further stated that this will be on the employee's own time and there will be no pay."

There is no question that the supervisory personnel of Weyerhaeuser who testified believed enforcement of an order for all boom men to wear life jackets would shut down the boom, and in time all the Longview operations. The fact is, however, that with the exceptions noted, there is no evidence [*23] that from 1954 until October of 1972 anybody ordered a union man to wear a life jacket on the job. These are the exceptions: (1) Two men were fired for refusal to wear life jackets, Gunnar Holten in 1954 and Ben Hance at about the same time; (2) After the first fatality in 1954 and the adoption of the company rule that all boom men wear life jackets, all were ordered to wear them and refused. The Company capitulated after about two hours. (3) The South Bay boom men were ordered to wear life jackets in 1966. The Company capitulated after four or five days. There is no evidence of inter-communication or concerted action between the two unions.

Things were about the same until October 31, 1972. At the start of the shift that morning Weyerhaeuser officials at the boom grounds told all the men they would have to wear life jackets or be suspended. All boom men put them on and all were still wearing them on November 2, 1972. The union local, of course, immediately took steps to bring the case to a posture where negotiations could get under way for additional pay for claimed change in job content.

Counsel for both the Secretary and Respondent have done a thorough job in researching [*24] and analyzing the law, in briefs submitted after both portions of the hearing. They are to be commended for their diligence.

We have read and considered the authorities cited and have conducted some independent research. In addition, since the standard in question is not clear and unambiguous as it applies to the duty of the employer in this case, we have conducted further inquiry into the legislative history of the Act.

It would serve no useful purpose here to analyze in detail the various authorities and their application to the facts of this case. It should suffice if we simply state what we are holding -- and why. The holding is within the intent of the law, the language of the standard and the statute and is in conformity with the weight of authority of cases decided under the Act. It is in conflict with no authority we have been able to find.

It seems to us that for 18 years Weyerhaeuser did everything reasonably possible to get its employees to want to wear life jackets. It did next to nothing to force them to wear the jackets. The company either fired two men because they refused to wear the jackets or they quit rather than wear them. There is no evidence [*25] of an individual order to a boom man other than the two mentioned. Once at the Longview boom (and once at South Bay) Weyerhaeuser ordered all its boom men to wear life jackets and then receded from its position when they refused.

The order of October 31, 1972 was obeyed. Possibly the existence of the Occupational Safety and Health Act of 1970 had something to do with it, and more likely the prospect of increased wages of $1.00 an hour had more to do with it.

In passing we should say we regret it very much if this decision has any effect in causing Weyerhaeuser to pay its boom men compensation for wearing safety equipment they have continuously agreed to wear, in contracts extending back at least 19 years. Be that as it may however, our purpose is to effectuate the provisions of the Occupational Safety and Health Act of 1970, supra.

It is our view that where a statute, regulation or standard provides for reciprocal duties on the part of both the employer and the employee, and where the employee's compliance is within an area of normal control by the employer (as here, for example, where it had the right to order the employee to wear buoyant devices) then the latter retains [*26] a substantial duty to see to it his employees obey the law. This duty Weyerhaeuser did not carry out. It was therefore in violation of the Act.

A monetary civil penalty in the amount of $70 was requested by the Secretary. In view of the time, trouble and expense to which Respondent has been put in this case: and considering further the terms of $350 paid the union for additional expense imposed in connection with the reopened hearing; the imposition of a monetary penalty is not indicated.

Based upon the entire record, the undersigned makes the following



Respondent Weyerhaeuser Company operates a large wood products manufacturing complex at Longview, Washington. Included in it is a log boom where about 78 boom men including four foremen were employed January 21, 1972. As a result of an inspection on that date the Secretary issued to Respondent a Citation dated February 10, 1972 -- amended on February 16, 1972 -- alleging the violation of 29 CFR 1910.265(d)(2)(iii)(g). A civil penalty in the amount of $70 was proposed for this alleged violation.


On the date alleged boom men employed by Respondent, whose duties required them to work from [*27] boats, floating logs, boom sticks and walk ways along and on the water were, with the knowledge of Respondent, not wearing buoyant devices contemplated by the standard cited. Respondent had provided life jackets meeting the requirements of the standard for all such employees.


It would not be reasonable to assess a monetary penalty against Respondent.

Based upon the foregoing and upon all facts which are admitted or stipulated and upon all uncontroverted substantial credible evidence, the undersigned makes the following.



At all times mentioned Respondent was an employer engaged in a business affecting commerce within the contemplation of Section 3(5) of the Act. The Commission has jurisdication of the parties and the subject matter of this action.


On January 21, 1972, Respondent was in violation of the Occupational Safety and Health Act of 1970, supra, by reason of its failure to comply with 29 CFR 1910.265(d)(2)(iii)(g), and an order should be entered so holding.


It would be unreasonable to assess a monetary penalty against Respondent and the Order herein should so provide.


Based upon the foregoing, it is hereby [*28]



Respondent be and it is hereby held in violation of the Occupational Safety and Health Act of 1970, supra, and of 29 CFR 1910.265(d)(2)(iii)(g) on January 21, 1972 at its log boom at Longview, Washington.


No civil penalty is assessed for this violation.


Item 5 of the amended Citation issued to Respondent February 16, 1972; alleging this violation, is affirmed. The proposed penalty of $70 is vacated.